Will and probate disputes – Frequently asked questions

What are the common reasons for Will disputes?

When a person dies, their wishes as drafted in their Will can sometimes be surprising to family and close friends who are left behind. The often high value of the assets and money involved can cause upset if it is felt that the Will is somehow unfair and there are certain circumstances that can cause the contents of the Will to be disputed by solicitors, such as:

• The Will does not make sufficient financial provision, or any financial provision at all, for a spouse, civil partner, child (either adult or under 18), someone treated as a child, cohabitant, or someone maintained financially by the testator.
• The beneficiaries of the Will are a surprise to family members or those close to the testator.
• There are concerns the Will is invalid because the testator did not have mental capacity to make a Will, or the Will was not understood by them and does not reflect their true intentions.
• There are concerns the testator was unduly influenced to make the Will.
• There are concerns the Will was forged or the result of fraud.
• A promise was made to leave someone property in a Will, but the promise was broken.
• The Will contains a clerical mistake or fails to implement the testator’s intentions.
• The Will was not executed properly, so is not valid.
• There are differing opinions about what the Will or a particular clause in it means.
• The beneficiaries of the Will want to remove the executors from office.

What makes a Will invalid?

Correct legal formalities were not complied with when the Will was made

The Wills Act 1837 sets out strict requirements for making a valid Will. Broadly, it must be in writing and signed, and the signature must be made or acknowledged in the presence of two witnesses at the same time who each attest and also sign, or acknowledge the signature in the presence of the Will maker.

There is a presumption that a Will is properly executed, but it can be rebutted.

The person making the Will did not have the necessary mental capacity

Known as ‘testamentary capacity’, this is a common ground for challenging a Will, especially with an ever aging population where cases of dementia are more prevalent. However, it does not necessarily follow that a person with dementia does not have testamentary capacity. The assessment of capacity from the solicitor who drafted the Will can be just as important as a medical experts evidence.

The person making the Will did not ‘know and approve’ the Will

This is applicable if the person making the Will didn’t understand what he or she was doing, or the Will did not truly represent their true testamentary intentions. The more suspicious the circumstances under which the Will was made (e.g the main beneficiary being heavily involved in the making of it) the more evidence is required to show that the Will was read over before it was signed, and the testator truly ‘knew and approved’ it.

There is an overlap here with lack of testamentary capacity but whilst it would be impossible for someone to lack testamentary capacity, but know and approve a Will, it is possible for them to have testamentary capacity, but not know and approve one.

The person making the Will was unduly influenced

In order to invalidate a Will, the influence must be exercised by coercion in the sense that the will of the testator is overborne. Pressure which causes a testator to succumb for the sake of a quiet life, if to the extent that it overbears free judgment, can be enough to amount to coercion, and a ‘drip drip’ approach can affect free will. The physical and mental strength of a testator is important because the will of a weak and ill person can be affected more easily than a ‘hale and hearty’ one.

The Will was the product of fraud or forgery

Copying a testator’s signature is an obvious example of forgery, but dishonestly suppressing or destroying a Will, or proffering a Will knowing that it is false or invalid are also examples.

Dishonestly ‘poisoning the mind’ of a Will-maker against a person who would otherwise benefit from their estate, by making untrue statements to them is also a form of fraud (known as ‘Fraudulent Calumny’).

What is the process for resolving a Will dispute?

In order to resolve a Will dispute, the person bringing the claim will first have to articulate the legal and factual basis of their claim, otherwise there is nothing to resolve. For those alleging a Will is invalid, this most often involves gathering key evidence such as the Will file of the solicitors who drafted the Will and the deceased persons medical records (if it is alleged they lacked testamentary capacity).

Next, they need to formulate their case in a concise but detailed ‘Letter of Claim’. Those affected by the claim (usually the main beneficiaries of the estate by the Will) will then have an opportunity to reply. Ultimately, the court’s function is to resolve Will disputes, but those who are affected often choose to try and reach an agreement between themselves before things get to trial by engaging in a form of Alternative Dispute Resolution (‘ADR’) which, if successful, is considerably less expensive than a trial. Mediation is a popular form of ADR which involves the parties agreeing the appointment of a mediator to help them move towards a settlement everyone can live with. Another form of ADR is ‘Early Neutral Evaluation’ where, unlike a mediator, and independent person (usually a solicitor or barrister) is appointed by the parties to make a decision based on written submissions and brief legal argument which it is agreed everyone will abide by.

How do I stop probate from going ahead?

It is possible to enter a caveat which stops probate going ahead. This may be done where, for example, there is uncertainty over which of more than one Will is the last valid Will or whether, for example, the deceased really died intestate. You must be 18 or over to submit a caveat and it will last for six months.

Can a Will be varied after someone has died?

A Will can be varied if everyone who benefits directly from the Will agrees to the change. In order for this agreement to be legally enforceable, a deed of variation should be drawn up. A Will may be varied for a number of reasons e.g. to reassign the way the estate is divided up and/or to make the division more tax efficient. A Will may also be varied if a claim is made under the Inheritance (Provision for Family and Dependants) Act 1975. Note that if the variation of the Will or intestacy is to have a tax saving benefit, the variation must usually take place within 2 years of the date of death.

How to contest a Will?

The first thing to do is seek specialist legal advice, and do so quickly so that the type of claim you have is identified at the outset, appropriate steps are taken to protect your position and nothing is done to prejudice your position.

For example, it is possible to block the issue of a grant of probate, but that is not the proper step to take if your claim is a claim under the Inheritance (Provision for Family & Dependants) Act 1975 for reasonable financial provision. There are also time limits to keep in mind. For example, you will usually only have 6 months from the date on which a grant of probate is issued to bring a claim under the 1975 Act, or to bring a claim asking the court to rectify a Will where there has been a clerical error. It is also important to correctly identify who are going to be the defendants to your claim, and make sure time is not wasted by incorrectly identifying them.

Will I need to go to court to contest a Will?

We will firstly aim to resolve matters through negotiation or alternative methods of dispute resolution such as mediation. In the situation where this is not possible and the matter proceeds to trial, you will then have to attend court and give evidence. However, most cases are settled without the need to go to court.

What can I do if I have been left out of a Will which is valid, or am unhappy with what I am left in it?

The Inheritance (Provision for Family and Dependants) Act 1975 allows certain people to bring a claim for financial provision where they do not believe their current financial provision, if any, is adequate.

The following people can apply under the act:

• The spouse or civil partner of the deceased
• A former spouse of civil partner of the deceased who has not formed a subsequent marriage or civil partnership
• Any person who, during the whole of the period of two years ending immediately before the date when the deceased died, was living in the same household as the deceased and as the husband or wife of the deceased or civil partner
• A child of the deceased
• Any person, not being a child of the deceased, who, in the case of any marriage or civil partnership to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage or civil partnership
• Any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased

Do I have to be related to the deceased to bring a financial claim?

No

Can I do anything if the wording of a Will is not clear?

If those affected cannot agree, the court can be asked to make a determination. The court can look at whether the Will gives effect to the deceased’s intentions and may also rectify any clerical errors made in the Will.

What can I do if I think a relative has left a Will but someone is withholding it from me?

In this case, you should get in touch with your local Probate Registry and see if they can tell you if there is a Will made by the deceased. If you believe that there is a Will and someone is withholding it, an application can be made to the court to make that person produce the Will or attend court and provide further information.

What can I do if the executor refuses to act or is very slow?

It is possible to apply for an executor to be removed and a new executor appointed. This will be done by court order. The court will only remove an executor where the removal is in the interest of the proper administration of the estate and will promote the welfare of the beneficiaries. Alternatively, a citation, which is a direction issued by the court, can require an executor to either accept or refuse a grant of probate.

If you have a question that is not covered here or would like advice about a particular matter, please contact Deborah Cain.

This content is correct at time of publication